Charles Mac Naughten Sir Francis Beaufort Palmer.

Company precedents for use in relation to companies: subject to ..., Volume 2 online

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repeal of the words in sect. 92 prevents the Court from making an
appointment upon the undertaking of the appointee to give security,
or of the petitioner to be liable, or conditionally on the appointee
giving security.

The Court has, in some cases, ordered the provisional liquidator to
give security in the manner prescribed to the satisfaction of the Board
of Trade, and when such an order is made, the Board of Trade can

l2



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148



WINDING-UP BY THE COUBT. [ChAP. X.



approve the security imder E. 60 of 1903 (formerly E. 67 of 1890),
p. 257, infra. Mercantile Bank of Australia, (1892) 2 Ch. 204. In
that case, North, J., had made such an order, but the Board of Trade
objected that the rule only applied after a winding-up order; the
learned judge, however, thought diflFerently.
Workmen's Having regard to the Workmen's Compensation Act, 1897, and to

A^^SoT^^^ the possibility of the official receiver being under personal liability in
respect of that Act for injuries to workmen where he is carrying on
the business of the company as provisional liquidator or otherwise, it
may be necessary for him to consider the advisability of insuring
against such liability, and where a special manager is appointed it
may be desirable to make it a condition of his appointment that he
should guarantee the official receiver against liability, and that such
guarantee should be supplemented by insurance or sureties.



Form 80.

Summons or
notice of
motion for
provisional
uquidator.



On the part of A., the petr in this matter [or, of the above-named
coy, or, in case the applicon is for the appointment of the off recr, " of
A. B., of, &c., a creditor," or contributory of the above-named coy],

that B., of , or some other fit and proper person may be appointed

prov liqr of the above-named coy [here mention any special powers and
directions, e.g., with power to take possession of and protect the assets of
the coy, and carry on the business of the coy until further order ; and for

that purpose to open an account with the Bank situate at , and

to pay all moneys, hills, and notes received into such hank, and to draw on
such account"], and with such other powers and directions as to the Ct
may seem fit.



Form 81.

Order
appointing



receiver as
provisional
liquidator
after pre-
sentation of
petition, and
before order
to wind up.
Form 10 of
1903.



the<



► day of -



19—.



{Title.)

Upon the applicon, &c., and upon reading, &c., the Ct doth hby
appoint one of the ofE recrs attached to the Ct,* to be prov liqr of
the above-named coy. And the Ct doth hby limit and restrict the
powers of the sd off reor as prov liqr to the following acts, that is to
say [describe the acts which the prov liqr is to he authorized to do and the
ppty of which he is to take possession].

See note to Form 85.

* The form as above was in use before the Hules of 1903.



Form 82. Upon motion this day made to the Ct by counsel for A., of, &c., and
Appointment B., of, &c., the petrs named in the peton on the 23rd July, 1892. And



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PROVISIONAL LIQUIDATOR]?. 149

upon hearing counsel for the sd A. and B., and for the above-named of official
coy. And upon reading, &c., both filed this day. This a doth hby ^j^joj^
appoint Mr. C. J. S., the off recr attached to this Ct, to be prov liqr of uquidator
the above-named coy. Thomas Daniel Sf Co, (0085 of 1892), A. L. Smith, J^^^tions,
L. J., for Vaughan Williams, J., 28th July, 1892.

Saoh an order as this is now rarely, if ever, made.



Upon motion this day made imto this Ct by counsel for E., of, &c., Form 83.
the petr named in the peton preferred this day unto this Ot, and upon Appomtment
hearing counsel for the above-named coy, and upon reading the sd of official
peton, an afft of, &c., filed this day. The Ct doth hby appoint ^^^^
[3/r. (7. /. aS^., the off recr attached to this Ct, prov liqr of the above- hquidator to
named coy']. And the Ct doth hby limit and restrict the powers of ^VVh^o^
the sd off recr as prov liqr to the following acts, that is to say, to apply manager,
for the appointment of A., of, &c., chartered accountant, as special
manager, with power to the sd A. to sell the ppty and assets of the sd
coy. Liberty to the prov liqr to apply before the hearing of the sd
peton if necessary. London Co-operative Supply Stores (007 of 1893),
Bruce, J., at Chambers, 5th Jan. 1893.

As to the words in italics, see next form and notes.

This kind of order is now very oommonly made. Bound f Co., W. N. (1893) 21.
And see note to Form 85.
As to special manages, see Chap. XI., and sect. 5 of 1890.



{Title.) Form 83a.

Ul>on motion this day made unto this Ct by counsel on behalf of C, Another,
the petr named in the peton in this matter on the 17th Dec. 1895, Appointment
preferred unto this Ct, and upon reading the sd peton and the afft of, ^ecelv^as
&c. This Ct doth hby appoint one of the off recrs attached to this Ct provisional
to be prov liqr of the above-named coy until the hearing of the sd li<l^»<^*^'-
peton or until further order. And the Ct doth hby limit, &c. \_as above'].
To take possession of, collect, and protect the assets of the above-
named coy, but not to distribute or part with the same until further
order. Queen's Hotel Co. (00293 of 1895), Vaughan Williams, J.,
20th Dec 1895.

As stated above, the application is now usually by summons. No particular
official receiver is appointed by the Court '; the Board of Trade nominating the
persons to act in rotation. See Form 76b, and notes thereto.



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160



WINDINO-UP BY THE COURT. [ChAP, X.



Form 84.

Notification
to official
receiver of
order pro-
nounced for

of official
receiver as
provisional
liquidator
prior to
winding-up
order being
m^de.
Form 13 of
1903.



Form 86.

Appointment
of official
receiver as
provisional
liquidator,
with restric-
tions.



(Title.)

To the Off Eecr of the Ct.

(Address,)

Orders pronoimced this day by the Honorable Mr. Justioe [oTy

as the case may he] lot the appointment of the off recr as prov liqr
prior to any winding-up order being made.



Name of
Company.



Begistered Offioe
of Company.



Petitioner's
Solicitor.



Date of
Presentation
of Petition.



B. 87 of 1908. — ^When an order for ... . the appointment of the official receiver
as provisional liquidator, prior to the making of an order for the winding-up of the
company, has been pronounced in Court, the registrar shall, on the same day, send
to the official receiver a notice informing him that the order has been pronounced.

The notice may be in Form .... 14, with such variations as onoumstanoesmay
require. [Formerly R. 22 of April, 1892.]

Upon the peton of G., of , &c., and upon the adjourned motion

this day made unto this Ct by counsel for the sd peton for the appoint-
ment of a proY liqr of the sd coy, and upon hearing counsel, &c. This
Ct doth order that the sd peton do stand over until Easter sittings
next. And it is ordered that the off recr be appointed prov liqr of the
sd Mercantile Bank of Australia, limtd. And this Ct doth hby limit
and restrict the powers of the sd off recr as such proT liqr to the
following acts, that is to say : —

(1.) To take possession of, collect, and protect the assets of the sd
coy, but not to distribute or part with the same until further order.

(2.) To discharge rent, salaries, and other current expenses.

(3.) To giye notice to determine employment of clerks and other
employees of the sd coy.

And any of the parties are to be at liberty to apply as to the bill of
exchange for 40,000/. drawn by the Commercial Bank of Australia on
the London branch of the same bank, and accepted by such branch,
payable on the 9th of May, 1892.

And it is ordered that the costs of the petr and of the sd coy of and
incidental to the sd motion be costs in the winding-up of the sd coy.

Mercantile Bank of Australia (1892, M. 089), North, J., 22nd March,
1892. B. 302; (1892) 2 Ch. 204.

In the High Court it was formerly sometimes stated which of the oiBoial reoeiyers



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PROVISIONAL LLQUIDATOES. 151

was appointed, e,g,y '* the senior official receiver attached to this Court.** Foel
Chftmog Co. (00248 of 1893), Wright, J., 6th Sept. 1893 ; H. Meyer ^ Co, (00243
of 1893), Wright, J., 30th Aug. 1893. But this practice is not now followed, the
order in this respect f oUovring Forms 72a and 83a.



Appoint C. J, S.J the off recr attached to the Ctj to be prov liqr of Form 86a,
the above-named coy. [Limit powers "of the sd off recr as prov AuoSct
liqr."]

1. To taking possession of and protecting the assets of the coy.

2. To carrying on the business of the coy till further order.

3. To receiving and collecting the debts due to the coy, and generally
to the doing of such things as may be necessary for carrying on the
business of the coy without the sanction of the judge. Carlyle Press,
Limtd (00133 of 1892), Barnes, J., 10th Oct. 1892.

As to the words in italics, see Forms 83a and 85, and notes.



Upon motion, &c., of A. and B., of, &c., the petrs named in the Form 86.
peton on the 19th Feb. 1891, preferred, &c., and upon hearing, &c., Appointment
and upon reading (peton and affts) : ofprovisional

And the coy by their counsel consenting, and the petrs by their (o1[ter than
counsel imdertaking, to be liable for the receipts of the prov liqr, oflBcial
hby appointed until he shall have given security, This Ot doth hby Jl^^ to^^
appoint 0., of, &c., prov liqr of the above-named coy ; and it is ordered summon a

that the sd 0. do, on or before the , &c., give security to be °^®®^fi^'

approved by the judge :

And 'this Ot doth hby limit and restrict the powers of the sd prov
liqr to the following acts, and to the following matters, that is to say
[carry on hustness, and draw 100/., Sfc,"] :

And to call a meeting to be held on the earliest convenient day to
consider the following questions : —

1. Whether the coy shall continue its business.

2. Whether the coy should be wound up, whether voluntarily, and

with or without the supervision of the Ot, or whether com-
pulsorily.
And it is ordered that the sd 0. act as chairman of the sd meeting.
National Wholemeal Co., Kekewich, J., 24th Mar. 1891.

In Porlemouth and Southsea Anny and Navy Stores (00244 of 1893), Wright, J., as
yacation judge, appointed a person other than the official receiver as interim pro-
yisional liquidator, on the undertaking of the petitioner's solicitor '^ to be responsible

for the acts and defaults and receipts of the said , as proyisional liquidator,

until he shaU have given security as hereinafter mentioned." The provisional
liquidator was ordered to give security for 1,000/. " to the satisfaction of the Board
of Trade." But, as stated above, the ofScial receiver is now invariably appointed.



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152



WINDING-UP BY THE COUBT, [ChAP, X.



Form 87.

Order for
provisional
Uquidator,
and as to
security and
aocoimts.



Upon the applioon, &c., the Ot doth hby appoint H , of ,

■ prov liqr of the above-named coy, he undertaking [see supra, p. 151]
forthwith to give security to the satisfaction of the Ct, and having
signed the registrar's book accordingly, and the petr undertaking by
liis counsel to be liable for the receipts of the sd prov liqr until he
shall have given security, it is ordered that the sd H. do account in
such manner as the Ct shall direct, and that he do forthwith pay
all moneys secured by him as such prov liqr into Ot ; and this Ct doth
limit, &c.

Where a person other than the official receiyer is appointed provisional liquidator,
it would seem proper to insert in the order a direction that all moneys reoeiyed by
him be paid into Court, or into a special banking account, unless he will require
such moneys for the purposes of the order {e.ff., to carry on the business} ; for
sect. 11 (2) of 1890, which requires liquidators to pay into the companies* liquidation
account, only applies to *' a company which is being wound up by order of the
Court,** and, therefore, does not operate until after a winding-up order. Accord-
ingly some of the provisions as to payment in, contained in orders under the old
practice, may be adapted. See Forms 88 and 90.



Form 87a.

Another on
application
01 share-
holder and
creditors.



Upon the applicon by summons dated, &c., of A., a shareholder of
the above-named coy, and W. [and others'], creditors of the above-
named coy, and upon hearing, &c., and upon reading, &c., and the
coy by their counsel consenting, and the applicants by their counsel
undertaking [as in Form 86], until he shall have given security as
hnftr directed, The judge doth hby appoint H., of, &c., chartered
accountant, prov liqr of the above-named coy until the hearing of the
sd peton, or until further order. [Order /or security as in Form 86.]
And the judge doth hby limit and restrict the powers of the sd prov
liqr to the following acts and matters (that is to say) :

1. [Takinj^ possession and protecting assets. See Form H5a,]

2. To carrying on the business of the sd coy until further order, but
so far only as may be necessary for the purpose of preserving the
business as a going concern.

3. [Receiving, Sfc, as in Form 85a, adding] but so far only, &c.
[as in 2, supra],

4. To negotiating for and entering into a provisional contract (such
contract to be subject to the approval of the Ct) for the sale of the
business of the said coy as a going concern.

5. [To calling meeting as in Form 86] for the purpose of obtaining
their approval to such contract, and in the event of such contract not
being approved by the sd shareholders to call a meeting of the sd
shareholders to consider the following questions [viz., continuing
business or winding-up, as in Form 86].

[Prov liqr to he chairman : Form 86.]



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PROVISIONAL LIQUIDATORS. 153

And it is ordered that the costs of all parties appearing on this
order of the sd applicon be their costs in the matter of the sd peton.

And it is ordered that the sd H., as such prov liqr, be at liberty to
open an account with the B. Bank, situate at, &c., for the purposes of
the sd coy, and to pay all moneys, drafts, bills and notes to be received
by him into such bank, and that he be at liberty to draw on such
account for all moneys required for carrying on the sd business for such
limited purpose as afsd. Goode, Marr, Matthews Sf Co., 00298 of 1898,
Channell, J., Oct. 18th, 1898.



Upon motion this day made unto this Ct by counsel for M. and C, Form 88.
the petrs named in the peton, on, &c., preferred ujito this Ct, and the petrs Order on
by their counsel [appointment of prov off liqr] undertaking to be answer- motion
able for the receipts of W., hnftr named, until he shall have given provision^
security as hnftr directed, this Ot doth by consent appoint W..provi- liquidator,
sionally off recr of the above-named corporation. And it is ordered

that the sd W. do on or before the day of , give security to

be approved by the judge. And it is ordered that the said W. do,

on the day of , and day of , and on the same

days in each succeeding year, leave his accounts at the Chambers of
th^ judge. And it is ordered that all moneys to be received by the
sd W. as such prov off liqr be pd by him into the Bank of England to
the credit of the account of the prov off liqr of the sd corporation.
And this Ct doth hby limit and restrict the powers of the sd W.
as such prov liqr to the following cu;ts, that is to say, to take posses-
sion of and protect the assets of the sd corporation, but not to dis-
tribute the same until further order. Oriental Bank Corporation.
Chitty, J., 3rd May, 1884. B. 510.



Limit powers to take possession of all the ppty of the coy in England, Form 89.
and to take all steps necessary for the protection of the coy's assets in Another.
France, including proceedings for prosecuting the coy's claim in Limitation of
the bankruptcy of S. Phillipart, contributory of the sd coy. Faure ^^*"*
Electric Co., Pearson, J., 4th June, 1884. A. 782.



^Appointment of prov [off] liqr, limit, Sec.—] -pOTm 90.

1 . To taking possession of and protecting the assets of the coy. g-r —. —

2. To carrying on the business of the coy until further order. liberty to

3. And to drawing and indorsing bills, and to advancing money to ?*^ ^^
customers, and to doing such other things as may be necessary for
carrying on the business, without the sanction of the judge.



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154 WINDING-UP BY THE COUBT. [ChAP. X.

Order that the sd N., as such proy [off] liqr, be at liberty to open
an account at the Bank for the purposes of the coy.

And order that all moneys which may be receiyed by him as such
proy [off] liqr be paid into such account, and that he be at liberty to
draw on such account for all moneys required for carrying on the sd
business.

And order that if and wheneyer the balance at the sd bank exceeds
500/., the excess shall forthwith be pd by the sd N. into the Bank of
England to the credit of the proy [off] liqr of the coy. South Eastern
Warehouse Co,, Chitty, J., 7th Aug. 1882.



Form 91. Upon the applicon of the proy [off] liqr of the aboye-named cor-
Order giving poration, and hearing the solors for the applicant and for the corpora-
liberty to tion, &c., Order that the applicant be at liberty to open at the Bank of
^^^^nJ^jj^ England a drawing account for current expenses and petty disburse-
aooount. ments as such proy [off] liqr to the amount of 1,600/., and that, for

that purpose, he be at liberty to pay into such account the sum of
1,000/. together with the sd sum of 500/. retained as afsd. And order
that the applicant be at liberty to draw upon such account for all
moneys required for necessary and proper payments to be made by
him as such proy [off] liqr, and to account for the same on passing
his accounts. The Oriental Bank Corporation^ Chitty, J., 12th May,
1884. B. 562.

In the case of Barntd^s Banking Co. a similar order was made in favour of the
official liquidator. The account was to be at the Liverpool Branch of the Bank of
England. Similar orders have been made on other oases. See Form 87a.



Form 91a.

Subsequent
order for
leave to
borrow, &c.



Upon the peton of, &c. [viz., the winding-up petn.']

And upon hearing, &c., and reading, &c., and all parties appearing
in this order consenting. It is ordered that the sd H., the proy liqr of
the sd coy, he at liherty to adyance or horrow for the purpose of
protecting the assets of the ahoye-named coy, and for carrying on the
husiness of the sd coy until further order, a sum not exceeding 200/.,
the amount so to be adyanced or borrowed as afsd, together with
interest thereon, to be a first charge upon the assets of the sd coy.
And it is ordered that the further hearing of the sd peton do stand
oyer, to, &c. Goode, Marr, Matthews ^ Co., 00298 of 1898, Wright, J.,
Noy. 30th, 1898.



Form 92.

Direction as



And H., who was by the sd order, dated, &c., appointed proy liqr
of the sd coy, is to be at liberty to apply in chambers as to passing his



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PEOVISIONAL LIQUIDAT0E8. 156

acoonnia, and for his costs and remuneration. Unianiat Club, Limited, to aoooonts,
<3hit<7, J., (U. 0126 of 1891). J^^^tion

__ , of proyisiosftl

For sabsequent order in the sazne case fixing the remnneration, ordering taxation Hquidiitor (in

and payment of the costs, and declaring the priority in which these and other pay- winding-up

snents were to be made, see Form 669, Chap. XLVII. order).

Upon the applicon of W., the off recr and prov liqr of the above- Form 92a.
named coy, by summons dated, &c., and upon hearing the applicant order as to
in person, and upon reading the order to wind up the sd coy, dated, &c., remuneration
the order discharging the same, dated, &c., and the report dated this J'^^ ^^^"
day, and the applicant admitting that he has received from the above- discharged,
named coy the sum of 21/. on account of his remuneration as such off
recr and prov liqr as af sd, It is ordered the applicant do retain such
sum of 21/. for and in discharge of his remuneration as such off
recr and prov liqr as afsd. Badminton Cycle, Sfc. Co,, Hood, Beg.,
Jan. 25th, 1899.



Upon the applicon of the prov [off] liqr, &c., Order that H. be Form 93.
discharged from the office of prov [off] liqr of the sd coy, and that ^IT T

his sd bond, dated, &c., entered into by him, together witJh the taxation of

Coy, limtd, as his sureties, be vacated ; And order that it be referred ^^^dlto^
to the [taxing-master] to tax the costs of the sd prov [off] liqr, and costs,
let him be at liberty to apply for payment thof when any funds are
available for that purpose. General Machinery Purchase Co,, 4th June,
1877. A. 1034.

If no winding-np order is made, the provisional liqoidator (other than the official
reoeiver) most, it seems, account as the Court directs ; for by sect. 20 of 1890, a
liquidator is only to aocoont to the Board of Trade when he is "liquidator of a
company which is lieing wound up by order of the Court '' ; but see note to Form 86,
p, 151.

• On the making of the winding-up order, the powers of the provisional liquidator
come to an end. Unless he is the official receiver, he ceases to be provisional
liquidator, and must apply to the Court for his discharge, and that he may be
released from his security. If one of the official receivers has been appointed
interim provisional receiver, on the winding-up order being made the Board of
Trade usually again nominates him as provisional liquidator.

Upon the applicon, &c.. Order that the costs of the sd prov [off] Form 94.
liqr not already taxed and allowed, be taxed as between solor and



client from the time of his sd appointment up to and including Further

the of , 1884, be taxed on the higher scale by the [taxing- taxation.

master], and that such costs when taxed be pd out of the assets of
tiie corporation. Oriental Bank Corporation, Chitty, J., 10th July,
1884. B. 1024. British Farmers' Co., 8th May, 1876. A. 803.



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156



WINDING-UP BY THE COURT. [ChAP. X.



Form 95.

Another.
Order for
taxation.



Upon the applioon of 0., the prov [off] liqr of the above-named
coy, and upon hearing the solors for the applicant and for the
[off] liqr of sd coy, and upon reading, &c., an afft of the applicant,
filed, &c., whereby it appears that the applicant has not received or
pd any sum or sums of money as such prov [off] liqr, [^Order dis^
charge f and recognizance ^ ^c, to be vacated"] ; and order that the [taxing-
master] do tax the costs, charges, and expenses of the applicant as
prov [off] liqr properly incun*ed from the date of his appointment up
to and including this order, and also the costs of the petr of the
applicon to appoint the sd prov [off] liqr and consequent thereon;
and order that such costs, charges and expenses be pd out of the
assets of the sd coy as and when the judge shall direct. National
Funds Assurance Co,, Bacon, V.-C, 21st April, 1877. B. 928.



Form 96.

Order for pay-
ment to late
provisional
liquidator of
certified
balance.



Upon the applicon of W., late prov [off] liqr of coy, and upon
hearing the solors for the applicant and for C, the liqr of the sd coy,
and upon reading the order dated 5th Jime, 1877, the office copy of
the recognizance hnftr mentd, the chief clerk's certificate, dated 8th
Aug. 1877, Order that the sd C, the liqr of the sd coy, out of the
assets of the sd coy, pay to the sd W. the sum of 53/. 19*. !</., the
balance by the sd certificate certified to be due to him as prov [off]
liqr of the sd coy. [^And order recognizances to he vacated^] Lyttl^9
Iron Agency, Limtd., 9th Aug. 1877. B. 1488.

In the above case a sapervision order had been made after the appointment of a
provisional liquidator.



The Duties of Interim Provisional Liquidator*

The duties of an interim provisional liquidator, that is to say, of a
provisional liquidator appointed after the presentation of the petition,
but before a winding-up order, depend on the order appointing him.
Very commonly his powers are restricted to takiog possession of and
protecting the assets of the company, and this was the usual course
under the old practice (and see Form 83a). Sometimes, however, his



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 25 of 152)